If transparency in political finance is part and parcel of democracy, why do some countries adopt internationally agreed standards to regulate political finance in a more transparent way, while others do not? This paper (a) suggests a theoretical framework to address this question, taking into account international obligations, existing party finance regulation, and demands for greater legitimacy of political institutions; (b) introduces a unique data set of 46 member-countries of the Group of States against Corruption (GRECO) project operated by the Council of Europe; and (c) concludes that unwillingness to pay the high domestic costs of changing national regulation is the prime impediment to compliance with transparency regulation proposed by GRECO. Right-of-centre cabinets are, on average, associated with a poorer level of compliance. Interestingly, compliance with recommendations which reduce the privileges of parliamentary parties does not deviate from the overall pattern.

PluriCourts has issued a call for papers for a workshop on "The Political and Legal Theory of International Courts and Tribunals: Multilevel Separation of Authority - Autonomy and International Courts," June 24-26, 2019, in Oslo. Here's the call:

Workshop on the Political and Legal Theory of International Courts and Tribunals 2019

Multilevel Separation of Authority - Autonomy and International Courts

PluriCourts invites contributions for its upcoming workshop on "The Political and Legal Theory of International Courts and Tribunals: Multilevel Separation of Authority - Autonomy and International Courts" in June 24-26, 2019, Oslo.

Deadline for submission is December 1

States have established manifold regional and international ICs to resolve disputes, interpret treaties, and deter illegal behavior. These ICs cover a range of issues including, human rights, trade, investment, border disputes, and international crimes. ICs’ competences, level of authority, method of interpretation, and geographical reach widely vary. ICs’ increase in number and influence has spawned controversy and complaints, often phrased as charges that they are illegitimate. We especially invite papers that address one or more such ICs concerning the following themes. The workshop welcomes both abstract and practice-focused perspectives. Some travel grants are available upon request.

The Vertical and Horizontal Allocation of Authority

Brexit, African exits from ICC and other recent challenges against ICs urge renationalization of authority now placed at a regional or international level. States have delegated or pooled some sovereign rights to an IC in an issue area for various objectives: to enhance the state’s commitments, to coordinate better, or to manage cross border concerns. Such challenges of IC demanding the renationalization of authority are directed at the 'vertical' authority of ICs over states. The 'horizontal' allocation of authority among ICs, and between ICs and other international bodies is also questioned. With what right should ICs review other bodies and contribute to international enforcement? What are we to make of recent challenges concerning the ‘fragmentation’ among the IC: how states now create ‘competing’ regional ICs; and ICs resistance and resilience against formal harmonization – as between the European Court of Human Rights and the Court of Justice of the European Union?

Autonomy

The autonomy of individuals has been one fundamental normative value and standard to evaluate and challenge the justice and legitimacy of political institutions. The autonomy of political communities, collective self-determination, is also widely praised as an important normative ideal. Is autonomy – individual or collective - a good guide to normatively assess international courts? In what way does the legitimacy of ICs depend on them protecting or promoting individual autonomy? Is the authority of IC necessarily in conflict with the collective self-rule of states? Or is horizontal delegation of power compatible with, perhaps even necessary for, effective collective autonomy in our globalized world? Can the political or collective autonomy of peoples justify a space that international authorities such as ICs should – or should not – interfere with? Or is collective autonomy different from individual autonomy in providing such limits?

We invite papers that relate to either one of these two topics or the theory of legitimacy of ICs more general. The following indicate some of several possible issues:

The concept of legitimacy for ICs

The appropriate legitimacy standards for ICs from the perspectives of history of ideas and/or contemporary legal and political theory, such as human rights, transparency, or rule of law

Their multilevel separation of authority, and its impact on adjudication

Subsidiarity principles guiding the allocation of authority between ICs and the national level

Specialization and fragmentation in ICs

The relevance of protecting individual or collective autonomy for the legitimacy of ICs

June 27: The PluriCourts Annual Lecture, by Professor Lawrence Helfer, Duke University

June 28: PluriCourts Annual Conference

About PluriCourts

PluriCourts is a multidisciplinary Centre of Excellence whose overriding research objective is to analyze and assess the legitimate present and future roles of this international judiciary in the global legal order: Why and when are these international courts and tribunals legitimate authorities, whose decisions should enjoy deference by various domestic and international ‘compliance communities’? The PluriCourts Research Plan is available here.

Why do some military and rebel groups commit many types of violence, creating an impression of senseless chaos, whereas others carefully control violence against civilians? A classic catch-22 faces the leaders of armed groups and provides the title for Amelia Hoover Green’s book. Leaders need large groups of people willing to kill and maim—but to do so only under strict control. How can commanders control violence when fighters who are not under direct supervision experience extraordinary stress, fear, and anger? The Commander’s Dilemma argues that discipline is not enough in wartime. Restraint occurs when fighters know why they are fighting and believe in the cause—that is, when commanders invest in political education.

Drawing on extraordinary evidence about state and nonstate groups in El Salvador, and extending her argument to the Mano River wars in Liberia and Sierra Leone, Amelia Hoover Green shows that investments in political education can improve human rights outcomes even where rational incentives for restraint are weak—and that groups whose fighters lack a sense of purpose may engage in massive violence even where incentives for restraint are strong. Hoover Green concludes that high levels of violence against civilians should be considered a "default setting," not an aberration.

The regime that has governed trade relations among the world’s largest economies since the creation of the World Trade Organization in 1995 is now under threat. While WTO Members adopting trade-restrictive measures on doubtful legal grounds is not a novelty, two developments make the current crisis unique. First, Members are reacting to perceived WTO-inconsistent conduct by imposing countermeasures, based on their own assessment that the justifications put forward are ill-founded. Second, acting on long-standing grievances against activism on the part of the Appellate Body, the United States has blocked all appointments of new members to the organ. Under present conditions, by the time any panel reports concerning these disputes are issued the Appellate Body will be non-operational. These developments undermine the core bargain underlying the WTO regime: the commitment by sovereign entities to entrust decisions regarding permissible and impermissible conduct to authoritative decision-making and to react to other Members’ conduct only following an institutional authorization to do so, when, within the Westphalian international order, they retain the ability to react unilaterally. After reviewing the development of the multilateral trade regime, this paper examines how the 2018 trade wars represent a breakdown of this core commitment and will potentially lead to fragmentation of the WTO regime. Members seeking to preserve the regime are faced with a paradox: overcoming the United States’ block through non-consensual procedures would undermine another commitment: that of decision-making by consensus. Without an Appellate Body or an alternative arrangement to reconstruct an authoritative institution, the WTO regime may devolve into one of Westphalian, de-institutionalized dispute resolution.

As struggles over the so-called mega-regionals intensified, a surprising cohort of international lawyers argued publicly against such treaties. This article focuses on certain contributions employing a particular mode of legalist resistance. Such interventions, I argue, offer welcome insights but, at their core, reaffirm a specifically neoliberal way of thinking about international law, regardless of the intentions of their authors.

The public discussion about the challenges posed by so called “Killer Robots” gained momentum at least since the open letter by robotics and Artificial Intelligence experts (and others like Stephen Hawkings and Elon Musk) warned of military artificial intelligence being a threat to humankind. Besides, the CCW-process, which is trying to create a majority on a ban on Lethal Autonomous Weapon Systems (LAWS), remains without a legal relevant outcome, yet. The legal framework governing the LAWS seems not to be that clear and state opinions are divided on the topic.
This book critically discusses the postulate during the CCW meetings of "meaningful human control" and thereby raises the question if "human control" is required by IHL in general. For the purpose of a uniform analysis the restriction of human control in various areas of warfare is summarized under the term “dehumanization of warfare”. The focus will be on the general principles of IHL like the principle of distinction, proportionality, precautions in attacks and the Martens clause and their transfer to LAWS. Also the book develops a possible solution for the responsibility for war crimes committed by a LAWS, which has been sent by a military commander.

Angelika Nußberger, Law or Soft law - Does It Matter?: Distinction Between Different Sources of International Law in the Jurisprudence of the ECtHR

Anja Seibert-Fohr, The Effect of Subsequent Practice on the European Convention on Human Rights: Considerations from a General International Law Perspective

Geir Ulfstein, Evolutive Interpretation in the Light of Other International Instruments: Law and Legitimacy

Marko Milanovic, Jurisdiction and Responsibility: Trends in the Jurisprudence of the Strasbourg Court

Isil Karakas & Hasan Bakirci, Extraterritorial Application of the European Convention on Human Rights: Evolution of the Court's Jurisprudence on the Notions of Extraterritorial Jurisdiction and State Responsibility

Ganna Yudkivska Territorial Jurisdiction and Positive Obligations of an Occupied State: Some Reflections on Evolving Issues under Article 1 of the Convention

Samantha Besson, Concurrent Responsibilities under the European Convention on Human Rights: The Concurrence of Human Rights Jurisdictions, Duties and Responsibilities

James Crawford & Amelia Keene, The Structure of State Responsibility under the European Convention on Human Rights,

Iulia Motoc & Johann Justus Vasel, The ECHR and Responsibility of the State: Moving Towards Judicial Integration: A View from the Bench

Linos-Alexandre Sicilianos, The UN Security Council, State Responsibility and The European Court of Human Rights: Towards an Integrated Approach?

On December 3-4, 2018, a conference on "The ICC Statute Reaches 20: Critical and Interdisciplinary Approaches/Le Statut de la CPI a 20 ans : Approches critiques et interdisciplinaires" will take place at the Université libre de Bruxelles. The program is here.

The Interest Group on Peace and Security of the European Society of International Law has issued a call for papers for a workshop on "The Rule of Law in Cyberspace" during the 2019 ESIL Research Forum. Here's the call:

2019 ESIL Research Forum, Göttingen
Interest Group on Peace and Security
Workshop
3 April 2019

Call for Papers: The Rule of Law in Cyberspace

The Interest Group on Peace and Security is organising a workshop on the rule of law in cyberspace during the 2019 ESIL Research Forum. The workshop will take place on Wednesday 3 April 2019.

Cyberspace constitutes a new aterritorial and interconnected domain where individuals, states, businesses and a host of other actors interact and produce effects in cyberspace and/or in the physical world. The legal nature of cyberspace, the possibility of regulation or the nature of such regulation are the subject of debates and contestation. A central question then is whether we can speak of a rule of law in cyberspace and, if so, in which terms and whether national and/or international visions of the rule of law are suitable in cyberspace.

The IGPS invites submissions addressing among others issues such as the place and role of law in cyberspace, jurisdiction, national/international enforcement, human rights, the nature of the rule of law in cyberspace, visions of the rule of law in cyberspace.

Abstracts (of not more than 750 words) should be submitted to Paulina Starski and to Nicholas Tsagourias by 17 November 2018. Please include the following information with your abstract: your name, affiliation, email address, whether you are an ESIL member, plus a one-page curriculum vitae.

Successful applicants will be notified by email by 17 December 2018. Approximately 4-5 submissions will be selected. The selected speakers will receive comments on their paper presentations from the conveners and from other IGPS members. For this reason, we invite members to notify us as to whether they want to act as commentators. The conveners may also invite members or experts to act as commentators.

Complete paper drafts will be required by Monday 4 March 2019. Papers may in due course be published in the ESIL SSRN Conference Paper Series or in a journal. The conveners will make the necessary enquiries.

Selected speakers will be expected to bear the costs of their own travel and accommodation. Some ESIL travel grants will be available to offer partial financial support to speakers who have exhausted other potential sources of funding. Further information on financial support will be distributed to speakers in due course.

For further information on the Research Forum please visit ESIL’s website.

Tuesday, October 16, 2018

Elizabeth Gloster, Symbiosis or Sadomasochism? The relationship between the courts and arbitration

George A Bermann,
What does it mean to be ‘pro-arbitration’?

Ronán Feehily,
Separability in international commercial arbitration; confluence, conflict and the appropriate limitations in the development and application of the doctrine

Jonathan Hill,
Claims that an arbitral tribunal failed to deal with an issue: the setting aside of awards under the Arbitration Act 1996 and the UNCITRAL Model Law on International Commercial Arbitration

David Isidore Tan, ‘Enforcing’ national court judgments as arbitration awards under the New York convention

Case Notes

Patrick Dumberry, State succession to BITs: analysis of case law in the context of dissolution and secession

Dietmar Czernich, The theory of separability in Austrian arbitration law: is it on stable pillars?

Will Donald trump international law? Since Trump's Administration took office, this question has haunted almost every issue area of international law. One of our leading international lawyers-a former Legal Adviser of the US State Department, Assistant Secretary of State for Human Rights, and Yale Law Dean-argues that President Trump has thus far enjoyed less success than many believe, because he does not own the pervasive "transnational legal process" that governs these issue areas. This book shows how those opposing Trump's policies during his administration's first two years have successfully triggered that process as part of a collective counter-strategy akin to Muhammad Ali's "rope-a-dope." The book surveys immigration and refugee law, human rights, climate change, denuclearization, trade diplomacy, relations with North Korea, Russia and Ukraine, America's "Forever War" against Al Qaeda and the Islamic State, and the ongoing tragedy in Syria. Koh's tour d'horizon illustrates the many techniques that players in the transnational legal process have used to blunt Trump's early initiatives. The high stakes of this struggle, and its broader implications for the future of global governance-now challenged by the rise of populist authoritarians-make this exhausting counter-strategy both worthwhile and necessary.

On December 7-8, 2018, the Technische Universität Dresden - in cooperation with the Friedrich-Schiller-Universität Jena, the Martin-Luther-Universität Halle-Wittenberg, and the Universität Leipzig - will convene a conference on "We Have Come a Long Way: The Universal Declaration of Human Rights at 70 – Normativity and Compliance," in Dresden. The program is here. Here's the idea:

On 10th December 1948, the UN General Assembly adopted the Universal Declaration of Human Rights. Although not
a legally binding instrument per se, the Declaration, in the 70 years of its existence, has both inspired and provided
the framework for numerous legally-binding human rights treaties. Moreover, the core of human rights is recognized
as customary international law. In legal terms, the world has thus made substantial progress in the sphere of human
rights.

This legal situation stands in stark contrast to the human rights situation of many people in the world today. Lack of
implementation of and compliance with human rights constitutes the major shortcoming of the international protection
of human rights, even though the most important aspect of these rights in practice is their actual implementation, not
their normative definition. For a long time, international law scholars have largely neglected the compliance record of
States with international law as a field of research. However, particularly in the area of human rights, both the UN and
the States were aware of the need for special monitoring mechanisms. For this reason, all human rights treaty regimes
establish treaty bodies composed of independent experts. They help to ensure the implementation of human rights as
well as encourage the States’ compliance with the treaties. In addition, the (former) UN Commission on Human Rights
also developed several instruments to promote compliance, such as the institution of the Special Rapporteur. Moreover,
at a regional level, human rights courts have been installed that can even issue legally binding judgements.

On the occasion of the Universal Declaration of Human Rights’ 70th anniversary, we will explore why, despite this range
of compliance mechanisms, fundamental human rights are still not always adhered to. The conference will aim at a dialogue
between members of several monitoring organs and scholars and confront practice with theory and vice versa.

This brief note presents German practice with respect to the use of force in the Syrian conflict. The development of the international rules on the use of force depends to a large extent on the practice and statements of governments. For this reason, governments should carefully consider their justification for the use of force of their own armed forces as well as statements they make with respect to the use of force by other states. The contribution focuses on the participation of the German armed forces in the fight against the so-called "Islamic State" as well as on the reaction of Germany to the two uses of force by the United States of America, France and the United Kingdom in reaction to the alleged uses of chemical weapons by the Syrian government in 2017 and 2018.

This paper makes three related points. First, in order to achieve efficient levels and types of international cooperation, it will be necessary to overcome fragmentation, both in international legislation and in international adjudication. Second, WTO dispute settlement has avoided making cross-sectoral trade-offs that would effectively overcome fragmentation, in part because it generally avoids evaluation of regulatory rationales, and in part because its mandate does not allow application of international law beyond the covered agreements. Third, even if we overcame the fragmentation problem in legislation and adjudication, we would still need to move toward majority voting to reach an efficient level of international law-making.

On November 16, 2018, the Erasmus School of Law will host a conference on "The Era of Disintegration. Taking Stock of the Dynamics of International Economic Governance in the First Two Decades of the 21st Century." The program is here. Here's the idea:

This conference will explore the legal, socio-political, and economic dynamics set in motion by the current model of international economic integration. Whilst promising to smooth out divergences and remove barriers, the intended integrationist architecture of international and regional economic regimes seems in fact to be both sustaining and nurturing patterns of disintegration. Brexit, the Euro crisis, the US challenge to multilateralism, environmental disruptions, and resource-cursed States are just a few examples of how disintegration dynamics are unfolding rapidly at various levels.

Academics and practitioners from the fields of law, economics and philosophy of economics will analyze these patterns, trying to discern the paradox by which the very instruments and mechanisms introduced with the aim of achieving an ever-closer integration may have actually spurred centrifugal and structural fragmenting tendencies. These tendencies are visible both as disintegration of the international legal system - or some of its regimes; and as social, economic and environmental disintegration conveyed through these regimes.

In line with the aims and objectives of Erasmus Initiative of Inclusive Prosperity, panelists will use the paradox integration/disintegration to reflect on whether the current ‘integrationist’ model is in fact widening or reducing political, social and economic divergences.

The conference will blend different contributions aiming at (1) providing a deeper understanding of the interaction between ‘integrationist’ international economic norms and disintegration patterns; (2) combining law, economics and philosophy, in order to critically examine the conceptual underpinnings of international economic law and policy making; and (3) engaging in a normative exercise to envision new models of integration, which could reconcile the current international economic regime with claims of inclusiveness.

This important and unique volume begins with seven essays that discuss the contemporary challenges to implementing international humanitarian law. Its second and largest section comprises 263 entries covering the vast majority of IHL concepts. Written by a wide range of experts, each entry explains the essential legal parameters of a particular element of IHL, while offering practical examples and, where relevant, historical considerations, and supplying a short bibliography for further research. The starting point for the selection were notions arising from the Geneva Conventions, the Additional Protocols, and other IHL treaties. However, the reader will also encounter entries going beyond the typical scope of IHL, such as those related to the protection of the natural environment and animals, and entries that, in addition to an IHL perspective, discuss relevant issues through the lens of human rights law, refugee law, international criminal law, the law on State responsibility, national law, and so on. The editors have also attempted to take into account certain concepts that have no direct foundation in IHL, but that are commonly used in mass media and politics, or generate wide interest in contemporary society, such as drones, economic warfare, cyber warfare, sniping, targeted killings, transitional justice, terrorism, and many other topics.